Dem
47
GOP
53
There has not been a substantive expansion of the federal judiciary since 1990. There are a lot more people in the country now than there were then, not to mention a lot more laws. So, the same basic number of judges is handling a much, much greater caseload than was the case 35 years ago. This, in turn, means that the federal courts operate at the speed of molasses (maple syrup for our Canadian readers, eh), and it can easily take half a decade or more to adjudicate a case to completion.
Everyone knows that more federal judges are needed, but surely anyone who reads this site can guess what the holdup is. Because new judgeships are not primarily a budgetary matter, a "new judge" bill cannot be passed via reconciliation. That, in turn, means that a "new judge" bill can be filibustered. And anytime such a bill comes before the Senate, the party that does not control the White House either refuses to bring it up for a vote (if they are in the majority) or filibusters it (if they are in the minority). The purpose here is to avoid handing the other party a whole bunch of empty seats to fill with partisan appointees.
The de facto impact of such maneuvering is that Congress is presented one, or maybe two, windows each decade in which it might actually act on the need for more judges. Basically, in the month or so before an election that is expected to be close, there is some hope of approving a bunch of new judges. This is because, at that time, neither party knows who will control the White House when it comes time to appoint the new judges, and thus who will get the bag full of goodies from Santa.
This time around, Sen. Todd Young (R-IN) put together a bill called the JUDGES Act of 2024. Even by the standards of modern bill names, the acronym is tortured: "The Judicial Understaffing Delays Getting Emergencies Solved Act of 2024." In any case, the legislation would add 22 judges in 2025, in 2027 and in 2029. So, the incoming president and 119th Senate would get 22, the incoming president and the 120th Senate would get 22, and the next president and 121st Senate would get 22.
The bill passed the Senate unanimously. House Democrats were more than willing to take it up, but Speaker Mike Johnson (R-LA) never brought it to the floor. This gives a pretty good clue as to how he, and the House Republican Conference, were feeling about Donald Trump's chances in the weeks leading up to the election.
Now that the election is over, the House Republican Conference is eager to consider the legislation. However, House Democrats say "no dice." And even if Johnson brings up the bill and rams it through, Joe Biden announced yesterday that he would veto it. Beyond the fact that he's not going to participate if Republicans refuse to play fair, he makes the point that a lot of the new judgeships would be in states that already have vacancies due to GOP stonewalling. In a statement, Biden observed, quite reasonably, that "Those efforts to hold open vacancies suggest that concerns about judicial economy and caseload are not the true motivating force behind passage of this bill now."
There is zero chance that a Biden veto would be overridden. Indeed, it's hard to imagine that outgoing Senate Majority Leader Chuck Schumer (D-NY) would even bring the matter up for a vote. That means that if Republicans really want those new judges, they will have to wait until January, and then they'll have to kill the filibuster. They might do it, but if so, it would be an engraved invitation to the Democrats to pass their own JUDGES Act, one that remakes the Supreme Court, the next time the blue team has the trifecta. You never know, but we would guess the GOP is not interested in playing with that kind of fire. What might work is a bill that creates new judgeships starting Feb. 1, 2029 and spacing them out over multiple years. Nobody knows now who will be president on Feb. 1, 2029, so it could work. But for most politicians, long-term thinking extends to, say, Friday. (Z)